A former Marine who claims to have exposed clandestine U.S. support for the Republic of Georgia in its 2008 war with Russia has requested political asylum in Russia. U.S. citizen Patrick Downey first sought asylum in Ireland, where his case was denied–as he puts it–by Ireland’s first ever Jewish Minister for Justice, Equality and Defense. He then “fled” to Russia (after visiting the U.S. for his brother’s wedding), where his asylum case is currently pending.
Patrick Downey (right) is seeking asylum in Russia.
Pravda reports that while living in Georgia in 2007 and teaching English to Georgian billionaire Bidzina Ivanishvili, Mr. Downey “obtained documents” indicating that a U.S.-controlled bank transferred $12 million to Mr. Ivanishvili. Mr. Ivanishvili, in turn, used the money to fund “anti-Russian activities” prior to and during the Russian-Georgian war. Mr. Downey tried to publicize this “sensational material” in the U.S., but no one was interested. However, his activities supposedly brought him to the attention of the U.S. government, which gave him the code name “Trouble Man” and tried to “neutralize” him. Mr. Downey told Pravda, “I began to feel that it was simply dangerous for me to be in the U.S.”
Hence, he fled to Ireland and now Russia.
While I must admit that I am skeptical of Mr. Downey’s claims (and I am not thrilled by his antisemitism), the fact that he is currently receiving publicity from a Russian newspaper is significant. On October 1st, Mr. Ivanishvili’s political party won parliamentary elections in Georgia, and he is likely to become the country’s new Prime Minister. As such, the timing of the article about Mr. Downey–and his claims of a secret anti-Russian alliance between the U.S. and Georgia–has broader implications.
Is Russia trying to intimidate Georgia? Is it trying to send a signal to the United States to keep away? Is Pravda simply writing an interesting story about an American seeking asylum in Russia? I have no idea. But it seems to me, if the Russian government is trying to send some type of message by publicizing Mr. Downey’s case, the message is not a friendly one.
It will be interesting to see what the Russian government does with Mr. Downey. Russia grants less than 5% of asylum cases, so if his case is approved, it might indicate more trouble ahead for Russian-Georgian and Russian-U.S. relations. As for Mr. Downey, if his case is granted, his hopes are the same as those of other asylum seekers around the world: “I will live! I will get married. I do not want to fight, do not want to constantly be afraid. I want a family and a home. I hope that this is what I will get.”
The Nansen Refugee Award has been called the “Nobel Prize for refugee workers.” The award is bestowed annually on a person or group that has “provided extraordinary and dedicated service to the forcibly displaced.” Past honorees include Senator Edward Kennedy, Medecins Sans Frontiers, and Eleanor Roosevelt.
The award is named for Fridtjof Nansen, a polar explorer, diplomat, and the High Commissioner for Refugees for the League of Nations (the precursor to the UN) from 1920 to 1930. Mr. Nansen helped hundreds of thousands of refugees return home or resettle in new countries after World War I. He also organized a relief effort to help famine victims in Russia in 1921 and 1922. For his efforts in Russia, Mr. Nansen received the 1922 Nobel Peace Prize.
Funny how the people with the toughest jobs often have the biggest smiles.
This year’s honoree is Hawa Aden Mohamed, who has helped thousands of displaced women and girls in Somalia. Ms. Mohamed, who is widely known as Mama Hawa, escaped violence in Somalia and was a refugee in Kenya, the U.S., and Canada. She left the (relative) comfort of Canada in 1995 and returned to Somalia, where she established the Galkayo Education Centre for Peace and Development. Through this organization, she has worked to secure women’s rights and bring free schooling, health care, and skills training to nine communities in the Mudug region of Somalia.
In the early days of the Education Centre, it was attacked with rocks, grenades and gunfire. Its gate was bombed. But Mama Hawa and her colleagues did not give up. “We persevered,” she recalled, “and slowly we convinced the elders and the women that what we were doing was for the benefit of the community.”
Today the Education Centre teaches girls and women to see themselves as full members of society who possess fundamental human rights. It openly addresses the issues of female genital cutting, puberty, early marriage, sexual and gender-based violence, and HIV/AIDS. It prepares women to play an active role in achieving peace, reconciliation, democracy, and development in their country.
Mama Hawa will receive the Nansen Award on October 1st in Geneva. If you find yourself in the neighborhood, the ceremony looks to be worth attending. If you would like to learn more about Mama Hawa and her organization, or if you would like to contribute to her worthy cause, you can do so here.
The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home.
Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata and Levy Kitambala Kinzito, have supposedly filed for asylum in the United Kingdom. Ms. Kimbata seems to be the more well-known of the two. She was a teenage basketball player from Kinshasa who lost both legs to a land mine when she was 18 years old. “I thought my life was over,” she said. “People told me I had a new life now, but I thought: ‘How can you tell me this when you have legs and I do not? Even if I accept this new life I do not have legs.'” After two years in the hospital, where she often had to sleep in the corridor and borrow a wheelchair just to reach the bathroom, she received prosthetic legs from the Red Cross.
Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.
Ms. Kimbata is now a wheelchair racer. She states that the DRC received money for her to pay for a racing wheelchair, but she never received the chair. She arrived in the UK with her orthopedic chair (which is designed to be pushed by someone else) and only received a racing wheelchair when another athlete generously helped her out.
In the United Kingdom, she decided to seek asylum. Ms. Kimbata told the press that she saw her neighbors shot dead by government troops on election day and that 95% of people in her area voted against President Kabila. While these events probably would not qualify Ms. Kimbata for asylum (at least under U.S. law), the fact that she is a high-profile athlete speaking out against her government may put her at risk, particularly given the repressive nature of the regime in her country. For these reasons, she likely has a good chance for success in her asylum claim.
It seems that all together, at least six Congolese athletes and coaches (from the Olympics and the Paralympics) have requested protection in the UK. As I have written before, such high-profile defections are a powerful repudiation of the home government, and hopefully they will help bring about some desperately needed changes.
Finally, having assisted many asylum seekers in the United States, I have witnessed how difficult it is to leave everyone and everything behind to seek refuge in a foreign land. It must be even more daunting for someone like Ms. Kimbata, who will have to live with her serious disability in a new place and (presumably) without family support. She is obviously a very courageous woman, and I hope that she will find safety and success in her new country.
I recently litigated an Eritrean asylum case where my client traveled through various countries to reach the United States. He passed through each country illegally—sometimes with a false South African passport; other times, he just crossed the borders without inspection. From the beginning to the end of his journey, smugglers assisted him (for a price—the average cost for such a trip is around $15,000.00). My client did not ask for asylum in any of the countries he passed through, even though he remained in some countries for several months and even though such countries (theoretically at least) offer asylum to refugees.
Asylum seekers or asylum sneakers?
From my client’s perspective, he was fleeing an extremely repressive regime, and he dreamed of starting a new life in the U.S., where he would be safe and enjoy freedom. (It’s said that in art, imitation is the highest form of flattery; I’d say that in international affairs, immigration is the highest form of flattery).
The Immigration Judge was not pleased with my client’s illegal journey or with his failure to seek asylum in any country along the route, and he had some strong words for the client at the end of the hearing. While I don’t agree with all that the Judge had to say, I think his words are important, and I wanted to share them here:
First, the Judge told my client that asylum exists to help people who are fleeing persecution. It is not an alternative for those without a better immigration option. When a person flees her country, she should seek asylum in the first country of safety; she should not shop around for the country where she would prefer to live. To use asylum as an alternative to immigration is an abuse of the system, and takes advantage of our country’s generosity. If enough people abuse the system, we might change the law to make asylum more restrictive.
Second, smuggling is a criminal activity and when an asylum seeker pays a smuggler, he is complicit in that activity; he is not an innocent bystander. Each smuggled person pays thousands of dollars to smugglers. Collectively, this is big—and illegal—business. It violates the sovereignty of nations and possibly supports a network that might be used for more nefarious purposes, like facilitating the transport of terrorists, criminals, and drugs.
Third, each asylum seeker who enters the U.S. in the manner of my client makes it more difficult for legitimate asylum seekers who follow him. As more people enter the U.S. this way, a reaction becomes more likely. Maybe the law will be changed to deny asylum claims where the applicant passed through other countries without seeking asylum. Maybe other restrictions will be put into place. In any case, if there are new restrictions, legitimate refugees will suffer.
Finally, the Judge warned my client against encouraging his fellow countrymen by his example. He noted that such encouragement might violate criminal and immigration laws, and this could cause problems for my client. It could also be dangerous for any future asylum seekers, as people have been harmed and killed on the journey to the U.S.
I think the Judge said all this to try, in a small way, to stem the flow of asylum seekers across the Southern border. I am not sure whether his words will have any effect, but I believe they are worth hearing. And while his points are legitimate and important, there are convincing (to me at least) counterpoints to each. But I will leave those for another time.
Under the current asylum law, illegal travel through various countries is a discretionary factor, but without more, it is generally not a basis for denying an asylum claim. Despite his concerns, the IJ granted my client’s application (and DHS did not appeal). How many more people will follow him and receive asylum in the United States remains to be seen.
A new bill in the House of Representatives seeks to link resolution of the Palestinian refugee situation with the plight of Jews (and Christians) expelled from Arab lands. Both Palestinians and Jews suffered as a result of expulsions from their home countries during and after the creation of the State of Israel. Palestinians left and were forced to leave Israel (and the West Bank and Gaza). And most Jews living in Muslim countries left or were forced to leave their homes as well. The bill is designed to ensure that these Jews are not forgotten by linking resolution of their issues with resolution of the on-going Palestinian refugee crisis. The bill’s supporters state:
Any comprehensive Middle East peace agreement can only be credible and enduring if it resolves all issues related to the rights of all refugees in the Arab world and Iran, including Jews, Christians and others.
In the chess game of life, Palestinians are everyone’s favorite pawn.
The legislation has bipartisan support in the House and calls on the Obama administration to pair any reference to Palestinian refugees with a similar reference to Jewish and other refugees.
While I agree that it is important to remember and address the grievances of Jews and others expelled from Arab lands (I recently wrote about this issue), linking the resolution of that problem with the issue of Palestinian refugees sets a dangerous precedent and undermines international law related to the protection of refugees.
A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The majority of Palestinians who fled Israel and now live in various Arab countries are “refugees” according to this definition. They do “not [have] a nationality and [are] outside the country of [their] former habitual residence as a result of such events.” Of course one reason they remain refugees is because the different Arab governments have refused to grant them citizenship. The other reason is that Israel does not permit them to return home.
As opposed to the Palestinians, the large majority of Jews who fled Arab countries are not “refugees” as that term is defined in international law. Most (if not all) such Jews have been granted citizenship in their new country of residence (be it Israel, the U.S., France or some other country). Also, for the most part, Jews expelled from Arab lands do not wish to return to their home countries. This does not mean that these Jews do not have legitimate claims for compensation for lost land, property, and the lives of loved ones. They most certainly do. But this is not the same as being a refugee. Thus, the new bill is factually incorrect when it refers to such Jews as refugees.
Far worse than the semantics of “who is a refugee” is the problem of politicizing a humanitarian benefit. Anyone who meets the definition of “refugee” is a refugee. Period. Such people are entitled to protection in the host country because they are refugees. There are no other requirements (though obviously there are exceptions for persecutors, criminals, and terrorists).
By linking the fate of one refugee population to another, the bill adds an external contingency to international refugee law. We no longer protect refugees because they are refugees. Now, we only protect them if some other conditions are met. Does this mean that we should deport legitimate asylum seekers from Mexico until Mexico compensates us for Pancho Villa’s 1916 invasion? Can Great Britain deny asylum to all Egyptians unless Egypt returns the Suez Canal? Is Japan permitted to reject all Chinese asylum seekers until China returns “Manchukuo?”
This is not how international refugee law works. We do not blame the victims and hold them hostage until some outside contingency–in this case a contingency not of their own making–is satisfied. In other words, it is not the fault of Palestinian refugees that Jews were expelled from Arab lands. So why should the Palestinians’ fate be tied to compensation for the Jewish “refugees” (something over which they have no control)?
I think the real motivation for this bill is not to help Jews from Arab lands. Rather, it is to justify Israel’s refusal to allow Palestinians to return to their homeland by demonstrating that there was suffering and loss “on both sides.” This seems to me a cynical and sinister use of international refugee law. I hope the bill will be soundly rejected.
Ecuador has granted asylum to Wikileaks founder Julian Assange. Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution–including the prospect of extradition to the United States, where he would not get a fair trial. “It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty,” the Foreign Minister told journalists in Quito, the Ecuadoran capital. “Ecuador is convinced that his procedural rights have been violated.” Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London. Given the UK’s lack of cooperation (including a thinly veiled–and quite shocking–threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.
Could this be Julian Assange escaping from the Embassy?
I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his “accomplishments.” While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret. For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban. Such people now face increased danger in their home country. Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret. Exposure damaged our international relationships and did nothing to further the cause of freedom. Our diplomats and our military officials need to communicate frankly with each other. This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate). I suppose overall, I believe that Mr. Assange did more harm than good. But I also suppose that my opinion in this regard is not all that important. What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.
It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law. First of all, Mr. Assange is a citizen of Australia. He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge. If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States. Normally, a person receives asylum from his home country; not from a third country. As a citizen of Australia, he should receive protection from his own government. There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed). Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy. Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.
Second, Mr. Assange is wanted for two crimes–sexual assaults–in Sweden. He claims that the charges have been contrived to punish him for exposing state secrets. That may well be true, but there is no indication that Sweden would deny him a fair and public trial. Also, there is no indication that he would be punished in Sweden for his Wikileaks activities. All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.
Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative. So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment). That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?
Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution–as opposed to prosecution–in the United States. As far as I know, exposing government secrets is illegal in every country. People who violate this law may be punished according to the law. Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to “persecution.” In Mr. Assange’s case, there is no reason to believe that he would face the death penalty. Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty. Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty. It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances. As he does not face “persecution” in the U.S., he would not qualify for asylum from the United States.
For all these reasons, Mr. Assange would not qualify for asylum under international law. Ecuador has its own reasons for granting Mr. Assange asylum. Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States. Maybe they just want to annoy the the U.S. and the West. Maybe they see it as a way to score propaganda points. Who knows? What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.
This June marks the 50th anniversary of the Evian Accord, the agreement recognizing Algeria’s independence from France. Since Roman times, Algeria was home to a large Jewish community. During the French colonial period, Jews were granted French citizenship. After independence, however, Algeria denied citizenship to its Jewish population and most of the country’s 140,000 Jews left for France. By 2004, there were less than 100 Jews remaining in Algeria, and most of those fled during the civil war (1991-2002) when the Armed Islamic Group threatened to exterminate them.
Ghardaia
I had an opportunity to visit Algeria in 2001. I traveled with an Ibadite Muslim friend who is from the M’Zab Valley, an oasis in the Sahara, about 500 km south of Algiers. The principal city of the M’Zab Valley is Ghardaia, which a French philosopher described as a “Cubist painting beautifully constructed” (maybe I am a bit more pedantic, but to me it looks like the video game Q*bert). There, I visited an old abandoned synagogue and the Jewish graveyard. As we are approaching the 50th anniversary of the Evian Accord, I thought I would share some photos and facts about the Jewish community of Ghardaia.
As best as we know, Jews arrived in Ghardaia in two waves. The city’s original Jews arrived in the 13th or 14th century, a few hundred years after the town was founded. The Jews were invited to the M’Zab to work as jewelers and smiths, professions traditionally avoided by the local Muslims. Legend tells of four families who came to the desert town from Djerba, an island off the coast of Tunisia. The Jews of Djerba trace their lineage back to Biblical times.
The second group arrived in the late 15th century. At the time, an extremist Muslim movement (possibly fueled by the failure of Islam in Spain) attacked and expelled Jewish communities in Morocco. Some Jews fled to Ghardaia. They joined the existing community, and over time, the two groups merged together.
Abandoned Synagogue in Ghardaia
The Jews of Ghardaia lived in relative harmony with their neighbors until the mid-20th century. By then, Algeria was controlled by France, and the population of Ghardaia was divided between Ibadite Muslims (who originally settled the M’Zab Valley), Jews, and Sunni Muslims. When the war of independence began in 1954, the situation for the Jews of Algeria deteriorated, and by June 1962, all the Jews of Ghardaia had been forced to seek refuge abroad.
Just as this 800-year chapter of Jewish history was drawing to a close, two anthropologists arrived on the scene, hoping to study genetic traits of the Jewish people there. Instead, they documented the final years and days of Ghardaia’s Jews. The anthropologists, Lloyd Cabot Briggs and Norina Lami Guede, wrote up their observations in an amazing (and obscure) paper called “No More Forever: A Saharan Jewish Town.” The paper begins: “This book is the record of a people who are gone.” Recalling their own departure, through newly established rebel checkpoints in the now independent Algeria, Briggs and Guede write:
The notebooks and pictures that we carried with us were the only coherent record that remained of a curiously distinctive way of life which had gone on for centuries and came suddenly to an end, leaving behind it only empty houses and an abandoned cemetery in the desert.
The same synagogue, circa 1958
It so happened that I was visiting Algeria during Passover, and so I was particularly keen to find other Jews, or at least visit Jewish sites. With the help of several friends, I was able to visit the old synagogue of Ghardaia and the Jewish graveyard.
The synagogue had been empty for almost 40 years when I visited, and it was in bad shape. A man lived there, and he allowed us to visit for a few minutes. I took some pictures, which you can see here, and I said a prayer. It was quite moving to pray in that abandoned temple, where (I assume) no Jew had prayed for almost 40 years.
The synagogue was a typical Sephardic design, with blue and white walls, and numerous thick columns. A wooden bimah (stage) would have formed the center piece of the room, but it was gone. Parts of the domed roof had collapsed, covering the floor with piles of stone and mortar. The ceiling above the women’s section had fallen in, filling the balcony with rubble. A few chains hung from the ceiling. At one time they held lamps with an eternal flame, long since extinguished. Two Stars of David were all that remained to confirm that we were in a synagogue.
Another view of the synagogue.
After visiting the synagogue, we walked to the Jewish cemetery, which is a mile or two outside the town. It’s difficult to get a sense for the size of the graveyard, as it blends perfectly with the rocky surroundings. It was here, in 1962, that the last Jews of Ghardaia buried their old prayer books, before departing their oasis homes forever (in Jewish tradition, books containing the name of G-d are buried, not thrown away). The oldest dated grave is from 1749 (5509 in the Jewish calendar), but some graves are probably centuries older. Members of the community used to come to a small grotto here to light candles and pray for assistance from their ancestors. Women who reached menopause came here to pray for one more male child. I also said a prayer at the graveyard and I placed stones on some of the graves (it is a Jewish tradition to place stones on the graves).
The Jewish cemetery near Ghardaia
The last Jews of Ghardaia left Algeria in 1962. They fled to France and most of them are still there. All in all, over 800,000 Middle Eastern Jews were forced to flee their homes between 1948 (the founding of the state of Israel) and the 1970’s. Like the Jews of Ghardaia, they came from communities that had existed for centuries (and in some cases millennium). Also like the Jews of Ghardaia, they lost most of their property and were lucky to escape with their lives. Having seen a bit of this history makes me lament the loss of these ancient and diverse communities, but it also reminds me of the importance of offering refuge to those fleeing persecution.
For more information about the Jews of Ghardaia, take a look at Jews of the Sahara by Ronald L. Nagel.
India is one of the few remaining countries that has not ratified the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (the U.S. is a party to the Protocol, but not the Convention). This means that India has no regular procedure for granting asylum to people fleeing persecution. Nevertheless, according to UNHCR:
[The] country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation. India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar.
While this arrangement protects certain people seeking asylum, others who need assistance cannot get it, or are left to languish in refugee camps.
Even Bollywood endorses helping refugees (at least the good looking ones).
In a recent editorial, writer Harini Calamur eloquently explains why India needs an asylum policy. Ms. Calamur relates the story of Rinkle Kumari, a 19-year-old Hindu girl living in Pakistan. Earlier this year, a group of Muslim men broke into Rinkle’s home, kidnapped her, and forced her to convert to Islam and marry her neighbor. The group of men was connected with a local Pakistani politician and the government failed to intervene. After the case gained national attention, the Supreme Court of Pakistan sent Rinkle to a shelter where she could decide whether to remain with her husband or return to her parents. She decided to remain with her husband. Most observers believe that her decision was based on coercion–she feared that her family would be harmed if she returned home.
Ms. Calamur asks what would happen if Rinkle escaped from Pakistan and sought asylum in India. Given the absence of an asylum system, Ms. Calamur writes that in the best case, Rinkle would end up in a refugee camp:
Refugees live in camps and have neither the right to free movement within India nor are they entitled to work. Most are in a state of suspended animation and have their lives at standstill. If Rinkle and her family escaped to India this is what they would face, and there is something terribly wrong and unjust about that.
Ms. Calamur makes the case for India to adopt an asylum system:
To be considered a world power, you don’t just need a nuclear arsenal and growing prosperity. There needs also to be a measure of compassion, sharing and providing of refuge. India needs to start by offering asylum and citizenship to the persecuted minorities in its neighbourhood. There will be those who misuse this open policy, as they have in other countries. But the needs of the persecuted, the fate of one Rinkle, far outweighs the misuse of an asylum policy.
Well said, Ms. Calamur. I hope those in the West who question the need for an asylum system hear your words.
When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis. A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.
You known you're a dissident when you've been Shepard Fairey-ized.
In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum. Technically, though, an embassy cannot offer asylum to someone in his or her home country. Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).
Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy. This does not mean that our government was powerless to help him after he arrived at the embassy. United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.
A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square. Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.
I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions. Also, it seems, Mr. Chen had not yet made up his mind to leave the country.
As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics). If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States. He obviously has a strong case for receiving protection. But until he actually departs from China, Mr. Chen’s situation remains precarious.
In the last few years, we’ve seen a rash of politically motivated suicides. The most well-known case is that of Mohamed Bouazizi, whose suicide to protest mistreatment by a Tunisian government official began the Arab Spring. There have also been a number of incidents where Tibetan Buddhist monks set themselves on fire to draw attention to the brutal Chinese occupation of their homeland. Most recently, a Moroccan woman trapped in a forced marriage killed herself with rat poison. The incident sparked protests against Islamic marriage laws in Morocco.
Van Gogh's painting anticipates the pain of many asylum seekers.
Now, the Irish Times is reporting the suicide of an asylum seeker from Burundi. The incident occurred in the Netherlands, and supposedly the man killed himself in an effort to increase the chances that his children would be permitted to stay:
Alain Hatungimana lost his wife during the Burundian civil war, in which 300,000 people were killed between 1993 and 2005. Then, five years ago, he managed to escape to the Netherlands with his son, Abdillah, and daughter, Maimuna – hoping, given the political circumstances, to be granted asylum and allowed to start anew.
Unfortunately for Mr. Hatungimana, the government rejected his claim and was planning to deport the family to Burundi. This despite strong support for the family from local government officials.
Mr. Hatungimana became depressed and, the day before he and his children were scheduled to be deported, he took his own life. “Those who treated him [for depression] say they have no doubt the act was a final desperate attempt to prevent his children from being sent back to Burundi – though it remains uncertain whether he’s achieved even that.”
The government has a somewhat different take on the incident: “The immigration ministry in The Hague said it ‘regretted’ the suicide, noting Mr. Hatungimana had had ‘psychiatric problems.'” The government also claimed that Mr. Hatungimana’s deportation was not imminent.
Whether the motivation was depression or a selfless (if misconceived) desire to help his children, Mr. Hatungimana’s story serves as a cautionary tale. While I would not advocate changing law or policy based on the fear that an asylum seeker might commit suicide, Mr. Hatungimana’s example reminds us how serious these cases are. We must do our best to ensure that legitimate asylum seekers receive the protection to which they are entitled under international law.
A new report from the Asylum-Network based on an 18-month study examines the challenges faced by asylum support groups in the United States and the United Kingdom, and the different ways the groups respond to those challenges.
In preparing the report, the authors found that although there were many differences between asylum support groups in the two countries, a uniting theme emerged–an enduring sense of injustice at the treatment of asylum seekers and widespread recognition of the need to do more to change the social, legal, and political situations which lead to inequalities and discrimination.
The U.S. and Britain agree: We don't like the asylum system or the French.
The report found many similarities between the U.S. and Great Britain, which led to the conclusion that “there are merits to dialogue and exchange… across these distinct country contexts.” Some challenges faced by asylum support groups in both countries include shortages of funding, disconnection between organizations, emotional strain, and lack of legal consistency and accountability in the area of asylum law.
The report makes a number of practical recommendations, including closer collaboration among asylum support organizations and pooling resources for fundraisers, media relations, and combating emotional strain. The report also recommends sharing ideas and policy objectives between organizations in different countries.
One statistic that I found interesting is that, on average, only 11% of an organizations connections were with groups in other countries. Despite the relatively small amount of international cooperation between asylum support groups, survey respondents “felt that there was much potential for co-ordinated international approaches to the issues they face,” particularly issues that could draw on international experience, like alternatives to detention. While this is true in theory, I am not exactly sure how it would work in practice.
For me–and I think for most immigration lawyers and advocates–the local connections are the most important. I rely on a local network of attorneys and fellow travelers to answer my questions and keep me informed of new developments. While I do sometimes rely on case law and reports from other countries (usually Canada, the UK, and Australia) to help support my clients’ claims, I can find this information on the internet without much trouble. I certainly like the idea of connecting with asylum advocates in other countries. It’s just that with limited time, it is difficult to establish and maintain such connections.
In the report, the authors indicate that they are attempting to start a conversation. I hope that this proves to be true. Perhaps a website, an on-line journal or periodic on-line conferences would be good ways to continue and expand the dialogue. Whatever form it may take, to succeed, the continued conversation must provide busy asylum advocates with easily digestible information that helps with practical problems.
Apparently spurred on by the anti-Chavez Venezuela Awareness Foundation, several members of Congress have written to DHS Secretary Janet Napolitano asking that she review the asylum process as it pertains to asylum seekers from Venezuela and ensure that it is “fair, humane, expeditious, and fully consistent with U.S. law.” It seems the Members of Congress are concerned because of delays in Venezuelan cases and because the asylum grant rate for asylum cases is too low.
I am concerned that the recent delays in processing these applications are the unfortunate result of a timid foreign policy that favors placating tyrants over assisting oppressed peoples achieve their democratic aspirations…. It would be shameful if the Administration allowed its asylum decisions, which are purportedly determined by a process untainted by political considerations to be delayed or denied in order to placate the very tyrant that asylum applicants seek to escape.
In a separate letter, Ileana Ros-Lehtinen (R-Florida), Chairwoman of the House Foreign Affairs Committee, complains that only a quarter of asylum petitions from Venezuela are granted.
There's at least one person who doesn't think President Obama appeases dictators.
The accusations in these letters are heavy on rhetoric, but short on reality. First of all, in FY 2011, there were 445 asylum cases received in Immigration Court. According to EOIR, 205 were granted and 136 were denied. This is a grant rate of about 46%, not 25% as the Congresswoman claims. Further, the rate for Venezuela is higher than the rate for such bastions of human rights as the Democratic Republic of the Congo (33%), Pakistan (33%), and China (44%).
Second, for anyone familiar with the Immigration Court system, the idea that asylum grant rates reflect the policy of the Obama administration is pretty ludicrous. Many Immigration Judges were appointed during previous administrations and they may or may not agree with Administration foreign policy. Even if they do agree with our current foreign policy (and assuming that that policy involves appeasing dictators), they are still bound by law to adjudicate cases based on the merits, and there is no reason to believe they are doing otherwise.
Finally, as to the supposed delays that Venezuelans face in Immigration Court, there is no evidence that such delays are any worse for Venezuelans than for asylum seekers from other countries.
In short, the letters to Secretary Napolitano are a cheap political stunt and the complaints are not based in reality. There are plenty of issues in the asylum system that could use some attention. Inequitable treatment of asylum seekers from Venezuela is not one of them.
The job of United States consular officers is to prevent undesirable aliens from obtaining visas to the United States. But sometimes the consular officers are a bit too enthusiastic about weeding out potential asylum seekers.
In an Ethiopian asylum case I litigated earlier this week, the DHS attorney submitted as impeachment evidence a consular officer’s assessment of my client, who was interviewed at the consulate for a non-immigrant visa. After describing why my client needed a visa (for a heart operation in the U.S.), the officer wrote:
Applicant swears she does not intend to seek asylum or stay in the US longer than needed, and has no problems that would prevent her from returning to Ethiopia. If she files an asylum claim, it is fraudulent.
The conclusory last sentence is what really bothers me–“If she files an asylum claim, it is fraudulent.” The consular officer does not know whether my client’s situation will change, or whether the situation in her country will change. His statement seems to be simply an effort to prevent her from gaining asylum under any circumstances. Not only is this unfair, but it contradicts established case law. The BIA has held that an asylum seeker who lies to obtain a visa in order to escape her country is not ineligible for asylum once she gets to the United States, though the misrepresentation may be considered an adverse factor depending on the circumstances. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987).
I am absolutely not coming to the U.S. to seek asylum. Or to sleep with Morgan Fairchild.
Matter of Pula recognizes that people fleeing persecution often say or do unsavory things in order to escape danger. Granted, such case law creates a perverse incentive–if you are able to lie your way past the consular officer, you can claim asylum in the United States–but what is the alternative? If a person honestly admits a fear of persecution in his country, the officer will deny the visa. I suppose we could force all visa applicants to sign a statement indicating that they have no fear of return, and then enforce that agreement if they claim asylum in the U.S. Of course, this would put us in the position of deporting people to countries where they face persecution or death, which is not only undesirable and immoral, but flies in the face of our international obligations.
All that said, I am sympathetic to the plight of the consular officers. I’ve compiled some statistics below about the number of people who receive visas and then later claim asylum. In FY 2010, over 14% of non-immigrant visa applicants from Ethiopia received asylum in the U.S., a not insignificant figure (like most statistics, these are a bit murky, since I compare visa applicants in the given fiscal year with asylum grants in the same year; nevertheless, I think they provides some general guidance). Given the high percentage of Ethiopian non-immigrant visa holders who win asylum, it is not surprising that the consular officers are pushing the envelope to stop this trend. Here are the Ethiopian stats for the last five years:
Ethiopia
Year
2006
2007
2008
2009
2010
Visas Issued
6,407
8,047
8,479
7,947
7,777
Asylum Granted
780
851
900
1,109
1,093
Percentage
12.2%
10.6%
10.6%
14.0%
14.1%
And by the way, at least in my case, the consular officer’s effort to stop my client from obtaining asylum did not work. The Immigration Judge granted asylum and the DHS attorney agreed not to appeal.
The country that send the most asylum seekers to the U.S. is China. Here are the stats for China (keep in mind that none of these statistics account for people who applied for asylum but were denied, or people who entered the U.S. illegally and then applied for asylum):
China
Year
2006
2007
2008
2009
2010
Visas Issued
347,832
401,331
455,279
475,548
753,198
Asylum Granted
5,598
6,370
5,462
6,118
6,683
Percentage
1.6%
1.6%
1.2%
1.3%
0.9%
Most asylum seekers I represent come from Ethiopia and Afghanistan, so I wanted to include some information about Afghanistan. This is a relatively new source country for asylum seekers (at least in the United States), and so the absolute numbers are not as high. The upward trend is clear, and some Western countries are now making it more difficult for people from Afghanistan to get a visa. Here are the statistics for Afghanistan:
A recent editorial in Al Jazeera by Charlotte Silver criticizes the Israeli asylum system. The first paragraph pretty much sums up the author’s feelings on the matter:
The notion of a “Jewish and democratic state,” never a feasible reality, continues to unravel as its inherent racism is revealed in a new way. Any political discussion of refugees that are of the wrong ethnicity inevitably refers to African migration to Israel as an “existential threat.” Labeling these refugees as “threats” allows the state to criminalize and imprison them. Meanwhile, the country continues to solicit immigrants from East Asia to fulfill the need for cheap labor, and Jewish immigrants to battle the internal demographic war.
To win asylum in Israel, you must show by a preponderance of evidence that your home government is meshugina.
There certainly are legitimate bases to criticize the Israeli asylum system (more on that below), but given the asylum systems–or lack thereof–in the Arab World, such criticism is hypocritical coming from Al Jazeera. For one thing, unlike the large majority of countries on Earth, many Arab countries have not accepted the Refugee Convention and offer no protection to people fleeing persecution. Further, wealthy countries such as Saudi Arabia, the UAE, and Kuwait are well known for their abusive treatment–akin to slavery–of foreign guest workers. Given the absolute disaster that foreign asylum seekers face in Arab countries, Al Jazeera would do better to concentrate on the failures at home rather than complain about what the Israelis are doing. It’s kind of like an F student criticizing an A student because he missed a question on the test (ok, maybe it’s more like an F student criticizing a C student, but you get the point).
That said, the Israeli asylum system is far from perfect. A thoughtful–and very critical–academic article from 2010 by Professor Tally Kritzman examines the Israeli system, which was created in 2002 (although Israel has been a party to the Refugee Convention since 1954). Essentially, the article argues that the Israeli asylum system is “an extension of Israel’s immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the ‘other,’ with the Palestinians and other enemy nationals facing maximum exclusion.” While asylum seekers are considered “others” in many countries, Prof. Kritzman argues that in Israel such people are “more ‘other’ than elsewhere.”
Despite the problems, Israel is making an effort to improve its asylum system. At the request of the Israeli Ministry of the Interior, in 2010 Israel partnered with the Hebrew Immigration Aid Society, UNHCR, and USCIS to help train asylum officers. Hopefully this new effort will lead to an improved asylum system that will treat asylum seekers more correctly under international law and distinguish such people from immigrants to Israel.
In 2010, the United Kingdom created an “Action Plan” and committed to “make the asylum system as gender-sensitive as possible so that women and girls who have been persecuted through violence and/or discrimination can have every opportunity to make their case and to have their asylum application considered as fairly as possible.” Now, a new report from Asylum Aid, titled “I feel like as a woman I’m not welcome,” provides a comprehensive gender-based analysis of the “law, policy, and practice” of the UK asylum system.
One way to avoid the problem of gender discrimination when seeking asylum.
The report basically finds that the UK is not doing enough to help female asylum seekers: “[D]espite numerous domestic commitments to improve the gender-sensitivity of the asylum system, the government’s repeated refusals to sign up to binding European legal standards makes it more difficult for women asylum seekers to enforce their rights in the UK.” Also, “there is very little consideration of gender in existing legislation” and the phrase “particular social group” is not being interpreted in a “gender-sensitive manner.”
The report also criticizes the UK Border Agency for its failure “to provide sufficient, timely, and understandable gender relevant information to asylum seekers.” As a result, asylum seekers often do not know that certain facts are relevant to their claim. Female asylum seekers interviewed for the report described their interviews with the Border Agency as “very traumatic” and gave examples of being asked inappropriate questions.
The report concludes, “It is hoped that by providing a broad overview of the UK asylum system from a gender perspective, this report will assist policy and decision-makers in thinking strategically about how to improve the gender-sensitivity of the system.”
It seems to me that the basic problem is that international law is not designed with the problems of women in mind. As the report notes, while woman face the same types of harm as men, they are also subjected to harm which is gender-specific, including female genital mutilation, forced marriage, forced sterilization, forced abortion, domestic violence, and rape. These types of harm are not covered by the Refugee Convention. Until the law is changed to reflect the specific types of harm that many women face, female asylum seekers will continue to face difficulties.
